A proposed anti-piracy scheme released on Friday 20 February will force internet service providers (ISPs) to send 'education' notices to customers, and could lead to massive and disproportionate punishments.
The scheme, which was developed by the internet industry under pressure from the government, proposes a heavy-handed, industry-run crackdown to combat illegal downloads. The scheme includes:
- unlimited fines
- easy access to consumers' personal details for rights holders
- legal action
- fees for consumers to challenge a notice they think is unfair.
CHOICE is concerned that this scheme will funnel consumers into legal action, bypassing ordinary checks and balances. We've sent an Education Notice to the Minister for Communications to let him know about the dangers of these 'education' measures for consumers.
What will the proposed anti-piracy scheme mean for you?
The scheme will require ISPs to send notices to consumers who rights holders allege have illegally downloaded content like television shows, music or movies. Once a customer has been sent three notices in 12 months, rights holders can force ISPs to hand over personal contact details.
Although an 'education scheme' to stop piracy sounds harmless, the proposed Code will actually funnel internet users into court actions where industry can seek unlimited amounts of money for alleged piracy, and provide a way for rights holders to gain access to your internet records and personal details so they can sue you or send you a letter demanding payment.
The Australian Notice Scheme: How does it compare?
Australia isn't the first country to implement a notice scheme. Other countries have also had different types of notice schemes in place.
Unfortunately, the Australian proposal seems to take the worst of these, and doesn't add in the protection for consumers demonstrated in some of the other schemes.
Australia – what's proposed?
- Notices lead to possible court action.
- Rights owners can gain access to customers' personal details.
- Complaints against notices are heard by a panel of people mostly chosen by industry.
- You need to pay $25 to lodge a complaint about any notice.
- You cannot appeal decisions made by the industry panel.
- There is no cap on fines that can be issued by a court.
If the Australian scheme goes ahead, once a customer receives three notices their ISP will be forced to hand over their personal details to rights holders. This will make it much easier for a rights holder to sue them, because it lets the rights holder skip past an ordinary step in the court process. Once in court, there is no limit to the amount of money that a rights holder can seek from the customer.
If a consumer thinks a notice they receive is wrong, they can lodge a complaint… provided they pay a fee. And after paying this fee, a panel of people mostly chosen by industry will decide whether the notice is fair or not. This seems likely to lead to problems and bias, but there is no way to appeal their decision if the consumer disagrees with it.
- Notices are educational only, and do not lead to court action.
- Rights owners can still enforce their rights through ordinary legal channels, with consumers having access to all ordinary avenues of appeal.
The UK scheme has only been operating since July 2014. Like the proposed Australian scheme, it requires ISPs to send educational notices to customers who have downloaded content like television shows, music and movies illegally, according to the rights holders.
Unlike the Australian scheme, this doesn't fast-track litigation. The scheme is meant to educate consumers on copyright issues, and provide information about ways they can access content legitimately.
- Notices lead to possible court action.
- Cases are heard by an independent legal body.
- Total fines are capped at $15,000.
- Consumers have the right to appeal decisions to the High Court.
Under the New Zealand system, after a customer receives three notices they can be sued by rights holders. These cases are heard by a special Copyright Tribunal, and total fines are capped at $15,000.
The Tribunal is a genuinely independent legal body, and the Chairperson must be a barrister or solicitor of the High Court with at least seven years' experience.
If a person sued by a copyright owner disagrees with the Tribunal's decision, they are able to lodge an appeal to the New Zealand High Court in some circumstances.
- Notices lead to punishments, such as reduction of internet speed.
- Rights holders are also able to enforce their rights through ordinary legal channels, with consumers having access to all ordinary avenues of appeal.
- The fines a court can issue in ordinary cases are capped at $30,000 per piece of content downloaded or shared.
The US scheme is similar to the others in that it requires ISPs to send notices to customers accused of downloading illegally. However, this scheme allows for six notices to be sent, instead of three.
On sending the sixth notice, an ISP is required to punish the suspected illegal downloader. This can be through suspending or cancelling their account, or throttling their speed. Thankfully, the Australian scheme does not include punishments like this at the moment, although the option to add punishments in the future is left open.
In addition to this, copyright owners can sue consumers in court. Fines are capped at $30,000 per song or show downloaded, although this figure can increase to $150,000 in some special circumstances.